Hong Kong’s Happy Heritage

The 800th birthday of Magna Carta was only lightly celebrated in Hong Kong, where mental energy is generally directed to the future rather than the past. A brief appearance in the Eastern Court last month by a certain Donald Tsang, however, suggests that Magna Carta remains a steadfast force in the former British colony.

Tsang, a former Chief Executive of Hong Kong, was charged with two counts of abuse of public office. The charges were instigated by the Independent Commission Against Corruption, which began its investigations while he was still in office. The Beijing-appointed head of the Special Administrative Region is not, as many once feared, untouchable.

Punctilious attention to the rule of law was not something I foresaw in the earnest think-pieces about Hong Kong’s future I wrote as a correspondent there in the early 1990s. Few of us around the bar of the Foreign Correspondents Club imagined that the crazy idea known as “one country, two systems” would last eighteen months, let alone eighteen years. Indeed, when I finally left the slurred conversation at the FCC in the early hours of July 1, 1997, I half expected to see the building surrounded by tanks while engineers from the People’s Liberation Army tore down the signs for Queens Road Central.

Tranquility never makes good copy in the foreign correspondent caper, where reputations are built on panic and disorder. The day-two handover story was among the dullest I’ve written.

It is far too early to make a definitive historical judgment about the transition. The Chinese, after all, are inclined to play a long game. Yet the rule of law may yet turn out to be Britain’s abiding legacy to this fortunate corner of China.

The independence of the judiciary is beyond doubt. So is the tenacity of the ICAC, which has been working vigilantly since 1973 to protect Hong Kong’s reputation as the cleanest jurisdiction in Asia. The comforting news for Tsang is that he stands in the dock under the presumption of innocence—a luxury seldom enjoyed by the accused on the other side of the border.

The China Daily, the mouthpiece of the Chinese People’s Government, celebrated Tsang’s prosecution with a high-minded editorial worthy of the Times of London. “Nobody is above the law,” it thundered. “The rule of law … is the cornerstone of democracy and no matter how one interprets it, the law must be respected.”

A cynic might baulk at the invocation of democracy; Hong Kong’s complex election system appears designed to take the sting out of the popular vote. Proceedings in the Legislative Council resemble those of a local council chamber more than the Palace of Westminster; to all intents and purposes the bureaucrats run the joint while Legislative Councillors nip at their heels like terriers.

The bastardised system is hardly perfect, but the dispersal of power and an astonishing degree of liberty have so far kept tyranny at bay in this happy corner of the People’s Republic of China. The judiciary and the ICAC run separate gigs, each stringently independent.

The bench of Hong Kong’s Court of Final Appeal customarily includes non-permanent judges from other common law jurisdictions. Some 99 per cent of cases are decided under common law, without reference to the Basic Law, the constitutional document that took effect with the handover in July 1997.

The power given to China by the Basic Law to overrule the Hong Kong courts on matters concerning defence and external affairs is seldom invoked, and never in the audacious manner with which the Commonwealth government repudiates the states by wielding section 109 of the Constitution.

The court’s supremacy was given symbolic stature a few weeks ago when it moved from its temporary home in the old French Mission Building to the granite, neo-classical building in the heart of Central that was once home to the Legislative Council.

“Those principles of Magna Carta I have set out—the independence of the judiciary, equality, respect for fundamental human rights—are fundamental to Hong Kong’s well-being,” the Chief Justice of the Court of Final Appeal, Geoffrey Ma, told a gathering of students in December. “These principles underlie our Basic Law.”

Clearly I was wrong to predict the imminent collapse of civic order the moment HMS Britannia sailed out of the harbour with governor Chris Patten on board at midnight on June 30, 1997. Hong Kong remains a bastion of English liberty. Edmund Burke would be proud of it. John Stuart Mill would be jumping for joy.

If journalists feel under pressure, it is probably the same pressure felt in any slimmed-down, multi-tasking newsroom in Australia. The tyranny to which they bow is the tyranny of deadlines.

Yet, if my rosy thesis is correct, how do we explain the widespread anxiety about the heavy hand of the PRC that prompted tens of thousands of polite, educated, middle-class people to join the Occupy Hong Kong movement last year waving umbrellas in the streets?

The wounds to the social fabric are unmistakable. A discussion with just about anybody in Hong Kong these days inevitably leads to brooding on last year’s protests and the tensions they signified. The conventional wisdom is that the change of leadership in Beijing in 2012 marked the beginning of a more assertive China, yet it is hard to uncover concrete evidence of its impact on Hong Kong. The most frequently cited imposition from the mainland comes not from Beijing but from the border crossing at Lo Wu, where thousands of Chinese day trippers squeeze into crowded train carriages.

Increasingly, one hears a sentiment that was seldom expressed under British rule—a proud sense of local identity. In defiance of Beijing’s jingoistic claims of national unity and territorial integrity, Hong Kong people cherish a culture that appears ever more distinct.

Hong Kong is not only different from mainland China, but also different from the former Portuguese territory of Macau, and different from Taiwan, for all its democracy and relative freedom. Hong Kong should properly be included in that happy group of territories we awkwardly call the Anglosphere, bound by a common language and the virtues of common law.

Why does China put up with this post-colonial impertinence? The conventional view, frequently expressed, is that a Hong Kong bathed in liberty is a Potemkin village built to fool Taiwan. Come across, it says. Everything will be fine.

The truth, I believe, is more prosaic. China lives with Hong Kong’s system—and perhaps is beginning to love it—because it actually works. Common law, and the security of contracts it bestows, produces the best conditions yet discovered in which enterprise can flourish. It encourages a permission-less culture in which anything not expressly forbidden by law is allowed.

Hong Kong shares in the miracle of the Anglosphere driven by a special notion of liberty that took hold in a damp island on the north-western fringe of Europe and became the foundation of a remarkable empire. Hong Kong’s dynamic, lightly regulated, free-market economy is both a product of liberty and is protected by the institutions that evolved from liberty.

Britain was not the only colonial power to secure a trading concession in China in the nineteenth century, but it was by far the most successful. The legacy of the former German concession in Qingdao amounts to nothing more than a few interesting buildings and the Tsingtao Brewery. Hong Kong, meanwhile, with a population smaller than that of New South Wales, is the world’s eighth-largest trading economy. It has the sixth-largest stock market in terms of capitalisation, the largest foreign exchange market, and enjoys the tenth-highest income per capita.

The Fraser Institute and the Heritage Foundation agree that it is the freest economy in the world: free flowing capital, free trade, free markets, and free of foreign exchange controls. Adam Smith would have loved this place.

Information flows freely too. I can think of no other city in which one wakes up to find five broadsheet newspapers and a tabloid piled outside the hotel door.

The defiant display of the Union Jack by some in the Occupy Hong Kong movement last year was not, as some suggest, a yearning for the colonial past. It was celebration not of Britain, but of Britishness—the concept that formed in the nineteenth century to encapsulate the values of a Greater Britain. The seed sown at Runnymede in June 1215 germinated into a peculiarly British idea. It would grow into the most stable and effective process for managing shared concerns the world has ever known. It was the foundation for the rule of law, modern democracy, enterprise and liberty. It blossomed around the world, most particularly in the English-speaking nations.

In Hong Kong, as in Australia, this happy inheritance provides the foundation for future prosperity.